Soumen Mondal vs Shruti Mullick & Ors
2023 Latest Caselaw 6235 Cal

   D/L
Item No. 02
18.09.2023
 KOLE

                               MAT 1753 of 2023
                                    With
                               IA CAN 1 of 2023
                                    With
                               IA CAN 2 of 2023

                              Soumen Mondal
                                   -Vs.-
                             Shruti Mullick & Ors.

              Mr. Dibyendu Chatterjee,
              Mr. Pritam Majumdar,
              Mr. Mainak Singha Barma,,
                                                         ... for the appellant.
              Mr. Shovan Ghosh,
              Mr. C, Ghosh,
                                                      ... for respondent no. 1.

Mr. Debjit Mukherjee, Mr. D. Ghosh, ... for the KMC.

In Re: CAN 1 of 2023 in MAT 1753 of 2023:

This is an application for condonation of delay of 132

days in presenting the appeal as noted by the Additional

Stamp Reporter.

Causes shown being sufficient, we condone the delay.

CAN No. 1 of 2023 is, thus, allowed.

In Re: MAT 1753 of 2023 and CAN 2 of 2023:

By consent of the parties, the appeal and the

connected application are taken up for hearing together.

This appeal is directed against a judgment and order

dated April 25, 2023, whereby the writ application of the

respondent no. 1 herein, being WPA 3599 of 2022, was

disposed of by a learned Single Judge of this Court. The

appellant was the respondent no. 7 in the writ petition.

The writ petitioner approached the learned Single

Judge for implementation of an order dated November 24

2021, passed by the Special Officer, Building, in a proceeding

initiated under Sections 400(1) and 416 of the Kolkata

Municipal Act, 1980.

It appears that the building in question was

constructed for residential purpose. However, the appellant

started a medicine shop in a portion of the said building.

The appellant says that he was granted a lease of the

concerned premises by the mother of the writ petitioner and

on the strength of such lease he started the business.

However, it appears that the writ petitioner made a

complaint to the Corporation to the effect that the appellant

herein had made unauthorized construction and had also

caused change of user of the premises under occupation of

the appellant.

The Special Officer, Building passed an order dated

November 24, 2021, the material portion whereof reads as

follows:-

"It is reported that one single storied structure (2.7x3.5) exists at site, constructed at least ten years ago (on 2009). At the time of inspection by officials of department the room under lock & key & no recent construction work was found. But no sanction plan is submitted. As stated by complainant, during the period when he was out of Kolkata, P.R Soumen Mondal & Utpal Mondal constructed Commercial shop under name of style U/s. Mritunjoy Pharmacy. But complainant could not produce any evidence that proves that the construction works has been carried out by the P.R. But the old structure is used as shop. As stated by complainant that the premises: 1A, Thakurpukur Road is recorded in partition deed. But not recorded in Assessment Department KMC. The P.R. did not appear on the Schedule dates of hearing. It is understood that the

P.R. carried out the business (shop) without consent of owner.

In these circumstances, i am inclined to pass order not to allow the charge of use in the existing structure as consent of owner is not available in file.

Department may intimate License department for taking action as needed from their end.

D/Sketch is part & parcel of order.

Order will be communicated after approval of authority.

Any person aggrieved by this order U/S 400(1) may appeal against this order to Municipal Building Tribunal within stipulated time in accordance with the provision of KMC Act, 1980."

It appears that the writ petition was filed by the

respondent no. 1 herein praying for a direction on Kolkata

Municipal Corporation to demolish alleged unauthorized

construction raised by the appellant herein. The learned

Judge by the impugned order directed demolition. Being

aggrieved the respondent no. 7 in the writ petition has come

up by way of this appeal.

Although proceedings were initiated under Sections

400(1) and 416 of the KMC Act, there does not appear to be

any demolition order as of date. Learned Advocate for the

respondent/writ petitioner says that demolition proceedings

were initiated and demolition order ought to have been

passed. However, an order has been passed only refusing to

grant permission for change of user.

Nobody has been able to draw our attention to any

demolition order. Accordingly, the order under appeal is set

aside.

The appellant would be at liberty to take recourse to

the statutory remedy against the Special Officer's order

dated November 24, 2021, in accordance with law. If the

respondent/writ petitioner is aggrieved with that order, she

shall also be at liberty to challenge the same before the

appropriate forum in accordance with law.

Learned Advocate for the KMC on instruction says

that pursuant to the Special Officer's order, the KMC has

sent an intimation to the license department informing that

the Special Officer has refused to grant permission for

change of user. On the basis of such action, the license

department has cancelled the license that was granted in

favour of the appellant. We only record such submission.

Mr. Chatterjee, learned Advocate for the appellant

says that the license was cancelled in breach of principles of

natural justice inasmuch as no opportunity of hearing was

granted to the appellant. We again put such submission on

record only.

Since we have not called for affidavits, the allegations

made in the stay application are deemed not to be admitted

by the respondents.

The appeal and the connected application are,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)